Pebra Peterborough Employees Association v. Pebra Peterborough Inc., 1988 CanLII 3643

Pebra Peterborough Employees Association v. Pebra Peterborough Inc.

[1988] OLRB Rep. January 76

3128-86-R Pebra Peterborough Employees Association, Applicant, v. Pebra Peter-borough Inc., Respondent, v. National Automobile, Aerospace and Agricultural Implement Workers Union of Canada (C.A.W. - Canada), Intervener.

BEFORE: Robert J. Herman, Vice-Chair, and Board Members I. A. Ronson and J. Sarra.

APPEARANCES: Robert B. Reid, Linda Barry-Hallowell, Don McLean, Darlene Van Volkenburg, Heather Hamilton and Sandra Rutherford for the applicant; D. I. Wakely, M. Failes, E. Jiscoot and D. MacDonald for the respondent; L. A. MacLean and Maureen Kirincic for the intervener.

DECISION OF VICE-CHAIR ROBERT J. HERMAN AND BOARD MEMBER J. SARRA; January 22, 1988

1. In this certification application, the intervener C.A.W. submits that the applicant ought not to be found to be a "trade union" within the meaning of the Labour Relations Act, asserts vari­ous improprieties with respect to the membership evidence and the Form 9's filed on behalf of the applicant, and alleges that involvement by management of the respondent in the formation and operation of the applicant constitutes breaches of sections 13, 64, 66 and 70 of the Labour Rela­tions Act. In its intervention, the intervener also asked that consideration of the application be deferred, given an anticipated build-up of employees in the workplace. As the build-up issue was not pursued in evidence or submissions, we do not propose to deal with it further.

2. In order to deal with the allegations it is necessary to recite the facts in some detail. The respondent's plant in Peterborough commenced operation at the beginning of September 1986, producing side mouldings for automobiles. Almost immediately, the company instituted a practice of holding hi-weekly communication meetings, meetings which employees were expected to attend during their work shifts, and at which management and employees could each discuss some of their concerns or suggestions or have some of their questions answered. Bi-weekly meetings were held for both day and night shifts, the night shift meeting timed to begin at the conclusion of the day shift meeting. When these communication meetings started there was no union presence at the plant, either on behalf of the applicant or the C.A.W.

3. By November the C.A.W. was attempting to organize Pebra's production employees. Organizers for C.A.W were handing out flyers and information circulars to employees at the plant gate and leaving printed information and blank C.A.W. membership cards in employee common areas such as the washrooms. Although the company knew of the C.A.W. organizing presence, it took no steps to impede the C.A.W. activities nor made any comments against the C.A.W. or other unions. During this period the communication meetings were held as usual. The C.A.W.'s campaign was discussed by employees at the meeting in early November, but management did not comment or attempt to influence employees with respect to signing a C. A.W. membership card.

4. The next communication meeting, November 26, was conducted as usual by the two senior managers of the respondent, Dave MacDonald, Plant Production Manager at the time, and Elizabeth Jiscoot, Director of Personnel at the time. Jiscoot told employees of management's con­cern that the communication meetings were not as effective as anticipated, either because employ­ees were not speaking, or because the concerns they raised were too minor for communication meetings (for example, a particular employee's concern about receiving a new pair of work gloves). An employee asked about employee associations, asking Jiscoot whether the company had considered an association or committee comprised of both company and employee representatives. A fellow employee, Darlene Van Volkenburg, then volunteered that she thought such an associa­tion would be a good idea. Jiscoot answered the first employee by indicating that she knew of two companies in the Peterborough area that had associations which worked well, one of which was the Fisher-Gage Employees Association, and that if people were interested in information on associa­tions or other organizations of employees, she would be happy to provide it, but beyond providing information she could not discuss such matters. The C.A.W. and its organizing campaign was dis­cussed by employees, as it had been at the previous meeting. Again, management made no statements with respect to employee associations, organizations, or unions, other than Jiscoot's com­ments.

5. After the communication meeting Van Volkenburg approached Jiscoot and asked her for the information Jiscoot had offered to provide. Jiscoot advised Van Volkenburg that she did not have the information with her. The next day, as was customary, the minutes of the communica­tion meeting were posted on the company bulletin board. They stated that employees interested in information on committees or associations should contact Van Volkenburg. Several weeks later, Jiscoot gave Van Volkenburg the promised information, consisting solely of publications issued by this Board advising employees of their rights under the Labour Relations Act. Jiscott made no comments when providing these publications.

6. Shortly before the Christmas holiday period, the company discharged a set-up employee on the assembly line. Numerous employees felt that the company had not treated this employee fairly, and in Don McLean's case, this concern prompted him to become involved in try­ing to organize his fellow employees. He asked Van Volkenburg if he could read the literature she had obtained. The C.A.W. continued its organizing efforts.

7. In early January, McLean asked Jiscoot if he could address employees at the next com­munication meetings. She agreed, provided McLean thought it would improve the meetings. McLean told her he wanted to try to motivate employees and to encourage them to communicate more.

8. The next communication meetings were held on January 14. That morning McLean asked Van Volkenburg if she would be willing to assist him in researching and considering whether employees ought to form a committee, union, association, or other organizational group. Van Volkenburg agreed and later in the morning told McLean that Sandra Rutherford and Heather Hamilton would also be willing to assist. At the day shift communication meeting that afternoon, MacDonald and Jiscoot first dealt with company business and other matters. When the meeting was turned over to employees for questions, McLean indicated he wanted to speak to employees about unions or associations. MacDonald and the other managers thereupon left the room. McLean said he felt there was a need for organizing and that he was forming a research committee to inquire into the matter and to consider whether employees ought to form an employee group or association or some other entity. McLean also told employees that he would be in touch with the Fisher-Gage Employees Association, and perhaps someone from that association would come and speak to them. He told them that Van Volkenburg, Hamilton, and Rutherford were assisting him. He concluded by asking employees to keep the issue of forming a union or association confidential, until his committee could advise employees of the research results. At that point the day shift meeting ended. The meeting for night shift employees occurred immediately thereafter, and McLean addressed those employees, to the same effect, before MacDonald and the other manag­ers reappeared.

9. The next day the C.A.W. handed out a new flyer at the plant gate. In it the C.A.W. noted that "there is talk of an association, [sic] it is true that all workers need an independent voice to speak on their behalf. Associations are rarely an independent voice; companies often manipu­late them." Attached to each flyer was an Application for Membership card in the C.A.W., together with a self-addressed stamped envelope, and employees were asked to sign the card, enclose a one dollar initiation fee, and mail the card and money to the named C.A.W. representa­tive.

10. That evening McLean phoned John Lunt, President of the Fisher-Gage Employees Association, and arranged for Lunt and Dave Lozon, the past president, to meet with the committee of McLean, Rutherford, Hamilton and VanVolkenburg. They met and discussed employee associations, unions and the relative merits of each, and learned how the Fisher-Gage Employees Association originated and operated. The four committee members decided to advise employees that they favoured an employee association, like the one at Fisher-Gage, consisting solely of the employees of the respondent, and not associated with any established union. The committee did not favour forming a committee of employees and management representatives.

11. The next day, January 16, McLean, Rutherford and Hamilton left the plant at lunch, having advised their respective supervisors that they needed time off for personal business, and arranged for a bank account in the applicant's name, the printing of membership applications, and a meeting place for employees on January 17th. For their model for an application card, they used the C.A.W. card that had been freely and regularly distributed to employees during the C.A.W's organizing campaign. When they returned to the plant, McLean asked Hamilton, Rutherford and VanVolkenburg to tell employees about the meeting the next morning at the Sir Sanford Fleming Pub and Common Room. McLean also told them not to discuss the meeting or anything about it with any member of management, nor allow management to learn of the meeting. Management in fact remained unaware of the meeting. One employee, Bonnie Bolger, expressed reluctance to McLean about attending as she was scheduled to work the next morning. McLean told her that she couldn't be discriminated against for becoming involved in organizing, and that MacDonald would not "kick your ass" for going. Board Member Sarra dissents with respect to this view of the con­versation between Bolger and McLean, while Board Member Ronson concurs in this finding.

12. A large number of employees attended the meeting at Sir Sanford Fleming that Satur­day morning. Approximately eight to ten of the employees had left their work shift at the plant to attend. No member of management was at the plant, and the employees simply stopped working, punched out, and went together to the meeting. Only two employees scheduled to work that morn­ing remained at the plant. When MacDonald arrived, after the others had left, he asked the 2 remaining employees where the others were. They responded that they would rather not say. Mac­Donald was the only manager at the plant that day, and neither he nor any other manager gave permission to employees to attend the meeting.

13. At the meeting, McLean acted as chairman and described to employees their rights under the Act, reading large portions of the Board's publication, A Guide to the Labour Relations Act. After explaining employee rights to organize and other labour relations matters, McLean noted that each individual still had to make the decision, whether to join the C.A.W., an employee association, or neither. Lunt, from the Fisher-Gage Employee Association, then spoke about how his association worked and some of the benefits of such an arrangement. After Lunt answered questions, McLean told employees that he favoured an employee association composed only of employees at Pebra, and not allied with an official union. He said he had membership cards for joining the applicant, and interested employees could sign up at the meeting.

14. Membership cards were then handed out to employees and many of them signed and handed one dollar together with the signed cards to either Hamilton or Rutherford. In return, they received a receipt for the one dollar payment (as did all employees when they paid their dollars).

15. The meeting then adjourned. Employees scheduled to work returned to the plant, punched back in, and completed their shifts. When they returned, MacDonald asked one of them where they had been. Rather than responding, the employee walked away. MacDonald retorted that he was not sure what was happening, but that they would speak about it on Monday. He learned later that weekend that an organizing meeting had been held, and he contacted legal coun­sel. As a result of conversations with counsel, he did not subsequently speak to employees about

their absence that Saturday morning, nor was any discipline imposed. These employees were never paid for the time they did not work that morning.

16. The four committee members tried to obtain other memberships before they applied for certification. McLean told his three assistants to be discreet in their attempts to sign employees, to not sign anybody up on company time and most importantly, to keep such organizing attempts hid­den from any member of management. On the evening of January 20th, though none of them were on shift at the time, they sat in the employee cafeteria and obtained additional memberships during employees' lunch or coffee breaks. No member of management was aware that the four of them were in the cafeteria. Other times, Rutherford on her own solicited and obtained further member­ships and the accompanying dollars.

17. On January 23rd, McLean, Hamilton, and VanVolkenburg took the afternoon off work, again stating personal business as the reason, and came to Toronto and filed an application for certification. As will be seen shortly, this was the first application filed by the applicant, and not the application before the Board in the instant proceeding. Before filing the application, the three of them each read the application and the Form 9, the signed membership cards, and the receipt books that Hamilton had brought with her. McLean then signed the Application, which listed the company's address and phone as the address of the applicant, as well as for the company. He also signed Form 9, which reads in part as follows:

"3. (Where the documentary evidence consists in part of receipts or other acknowledgements of the payment on account of dues or initiation fees.) On the basis of my personal knowledge and inquiries that I have made, I state that the persons whose names appear on the receipts or other acknowledgments of the payment on account of dues or initiation fees are the persons who actu­ally collected the moneys paid on account of dues or initiation fees and that each member, on whose behalf a receipt or an acknowledgment of payment is submitted has personally paid in money the amount shown thereon on his own behalf to the person whose name appears on his receipt or acknowledgment of payment as collector, EXCEPT IN THE FOLLOWING INSTANCES:"

The Form 9 signed by McLean indicated no exceptions. Both forms were then filed with the Board.

18. After receiving a hearing date from the Board, McLean met with Lunt and Lozon to discuss drafting a constitution for the applicant and electing officers. A constitution was prepared based on a copy of the Fisher-Gage Employees Association constitution provided by Lozon. At a meeting at the Miss Diana Motor Hotel on February 6, employees who had signed memberships voted to adopt the constitution, and by secret ballot an executive was elected.

19. The Board hearing was scheduled for February 13th. Earlier that week, McLean received a copy of the intervention filed by the C. A. W. He discussed the intervention with Lunt, who suggested that counsel be retained, and referred McLean to the applicant's current counsel. The day before the hearing McLean met with counsel and they discussed the allegations contained in the intervention including an allegation that the membership cards had been ambiguous and mis­leading. That allegation was based on the fact that although the heading on the membership cards read "Pebra Peterborough Employees Association", the text below the heading read "I hereby apply for membership in, and authorize Pebra Peterborough ...", the name of the employer. Counsel was authorized by McLean to withdraw the application and it was. The next C.A.W. flyer indicated that the applicant had withdrawn its application.

20. The next meeting was Sunday afternoon, February 15, at the Miss Diana Motor Hotel, to explain to employees why the application had been withdrawn, to get members to sign new membership cards, and to sign up new members. McLean had with him blank applications for membership, edited to remove any ambiguity as to the organization employees were being asked to join. McLean told employees that if they had already signed a card and paid a dollar, they need not pay the dollar again. If employees were signing for the first time however, they were required to pay a dollar. The blank cards were then handed out by Hamilton and Rutherford, and the two of them sat at a table at the front of the room while employees brought the signed cards up to them. Once employees who had re-signed (ie. signed a second replacement card) had deposited their cards in a pile on the table, Hamilton and Rutherford sub-divided the cards and each of them signed approximately half of the cards as collector, without regard to whether the person signing as collector had actually collected the dollar from the signing employee for their first card. With respect to how or why they signed as collectors acknowledging receipt of the $1.00 when the sign­ing collector might not have received it, Rutherford testified that she and Hamilton didn't know if they had to re-sign cards they had signed the first time, so they each signed some of the cards. Hamilton testified that they had a list of employees who had signed the first time, and they were therefore able to determine from which employees they needed a dollar. These new cards read, in blank, as follows:

OFFICIAL APPLICATION FOR MEMBERSHIP

PEBRA PETERBOROUGH EMPLOYEE'S ASSOCIATION

I hereby apply for membership in. and authorize PPEA, its agents or representatives, to act for me as my exclusive representative in collective bargaining, in respect to all the terms and conditions of my employment and to enter into contracts with my employer covering all such matters.

Date . . . . . . . . . . . . . . . 19. . . . X . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Signature of Applicant

$1.00 Initiation Fee Received by . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Signature of Collector

I hereby certify that I paid the above amount

Date . . . . . . . . . . . . . . . .19. . . . X . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Signature of Applicant

The date at the bottom left of the card, below "I hereby certify that I paid the above amount", was dated the date the card was signed. For re-signed cards, this was not the date the dollar was paid.

21. During the next few days, Hamilton and Rutherford collected further cards. Hamilton obtained both replacement cards and new cards in the cafeteria on February 17th, and other times and places. Rutherford was not with Hamilton on all of these occasions. All the cards show either Hamilton or Rutherford as collector. Hamilton testified that on these occasions when she obtained re-signed cards, and signed them as collector acknowledging payment to her of the $1.00, the employee "handed the card to me and I signed it and away they went". As with the re-signed cards obtained at the February 15 meeting, she signed as collector without consideration as to whether she had been the person who received the $1.00.

22. The instant application was received by the Board on February 18th, and was followed shortly thereafter by a Form 9, again signed by McLean as President of the applicant, which again disclosed no special circumstances or exceptions. With respect to this Form 9, and McLean's per­sonal knowledge of the circumstances of the collection of cards, McLean testified that he had had very little to do with the collection of cards, or the re-signing of the membership cards, as only Hamilton and Rutherford had collected them. He also testified that he could not answer whether the person who had signed as collector on the second re-signed cards, for which no additional dol­lar was paid, had signed the original card as collector. McLean in effect admitted in testimony that when he signed this Form 9 he was unaware of whether the person signing as collector had actually collected the dollar with respect to the applicable card. McLean also testified, with respect to cards signed by first time members and accompanied by a dollar payment, that he had personal knowl­edge of the signing of only one of those new cards. He had no personal knowledge of the collection of the other new cards. He did not compare the cards with the receipt books before signing the Form 9. He also stated that he had not asked the two collectors, prior to signing this Form 9, whether each of them had collected the dollar for the cards which they had signed as collector.

23. Rutherford in turn testified that she had no discussions with McLean whatsoever with respect to either the first Form 9 filed in this proceeding, or as will be seen shortly, the subse­quently filed amended Form 9. Rutherford testified that neither McLean, nor Hamilton (to whom Rutherford had given her cards), had asked her any questions about the collection of cards that Rutherford had signed as collector.

24. The C.A.W. again intervened as it had in the first application, again filing extensive allegations. Those allegations include the statement that at the meeting on February 15th, where employees signed replacement cards to remove the purported ambiguity, the executive "had new applications for membership in the applicant signed by some persons in the audience. No dollars were paid or exchanged upon the signing of these applications for membership."

25. At the first day of hearing, before a differently constituted panel, the Board dealt with a preliminary objection that the intervention was lacking sufficient particulars. The Board orally ruled that further particulars had to be provided, adjourned, and issued in writing the reasons for its ruling in a decision dated March 31, 1987 ([1987] OLRB Rep. March 421). That panel of the Board also set the next hearing dates, indicating that consideration of the merits of the application would begin April 1, 1987.

26. Just prior to April 1, the applicant filed an amended Form 9, again signed by McLean as President of the applicant, which reads in part as follows:

"3. (Where the documentary evidence consists in part of receipts or other acknowledge­ments of the payment on account of dues or initiation fees.) On the basis of my per­sonal knowledge and inquiries that I have made, I state that the persons whose names appear on the receipts or other acknowledgments of the payment on account of dues or initiation fees are the persons who actually collected the moneys paid on account of dues or initiation fees and that each member, on whose behalf a receipt or an acknowledgment of payment is submitted has personally paid in money the amount shown thereon on his own behalf to the person whose name appears on his receipt or acknowledgment of payment as collector, EXCEPT IN THE FOLLOWING

INSTANCES:

SCHEDULE 'A'

1. Two collectors accepted payments of $1.00 as set out on the combined membership card/receipt forms submitted to the Board.

2. The two collectors were present together when all payments were received.

3. Each collector kept a receipt book and gave receipts regarding funds collected by them personally.

4. The two collectors were present together when all combined membership cards/receipt forms were signed by them indicating receipt of the funds.

5. In some instances, the specific collector who signed the combined membership card/receipt form was not the one who personally received the $1.00 payment."

6. About this Form 9, the only one noting exceptions, McLean testified that it was filed by way of clarification with respect to receiving the dollars for each re-signed membership card. McLean said it was to explain to the Board that the collector who signed the resigned card was not necessarily the individual who had collected the dollar for that employee. When asked by his coun­sel why this information had not been provided with the first Form 9 filed in this application, McLean said it was because he had had very little to do with the re-signing and collection of cards~ so that he could not have answered whether the person who had signed as collector had actually collected the dollar. McLean did also testify that he had discussed the circumstances surrounding the collection of cards with the collectors and counsel prior to, but not at the time of, signing the amended Form 9. We do not find this latter evidence reliable. This testimony was given in response to leading questions from his own counsel. McLean gave no details of the discussion, other than to testify he had discussed "this" with them. However the evidence of Rutherford was that McLean had not discussed with her at all either of the Form 9's filed in this application, nor asked her anything about the cards she had collected. Although Hamilton, the other collector, tes­tified that she had discussed the method of re-signing when the instant hearing was about to begin, she also told the Board that she had not discussed the amended Form 9 with McLean.

7. We turn first to consider the question of the adequacy of the membership evidence and the reliability of the Form 9's. During the hearing, over the objection of counsel for the C.A.W., we entertained the viva voce evidence of the Form 9 declarant, McLean, and the collectors Hamil­ton and Rutherford, with respect to the manner in which they collected the cards and dollar pay­ments, and with respect to the dates on which the dollar payments were collected. In support of accepting such evidence, see, for example, Maple Leaf Mills Limited, [1984] OLRB Rep. Oct. 1474, at paragraph 9; Colautti Construction Ltd., [1985] OLRB Rep. May 643.

8. The focus of the Board's Form 9 concerns has been commented upon before. In Kitchener News Company Limited, [1980] OLRB Rep. Nov. 1656, the Board wrote as follows:

9. The knowledge which is required as a precondition to signing the Form 8 [now Form 9] Dec­laration was outlined by the Board in National Steel Car Corporation Limited, [1966] OLRB Rep. Jan. 738 at paragraph 13:

It is readily apparent that a person completing Form 9 (now Form 8) must be seized with some type of knowledge in order to satisfy the requirements of item 3 cited above. This knowledge may be personal knowledge (i.e.) knowledge gained by either acting as the actual collector or knowledge gained by being personally present and actually witnessing the transaction between the collector and the member wherein the membership card was signed and payment of money made by the member to the col­lector.

The other type of knowledge which is acceptable is that knowledge gained from inquiries made of the persons who actually acted as collectors, or the persons who made the necessary inquiries of the actual collectors.

The requirement that inquiries be made is obviously not an onerous one or one that imposes an undue burden on the applicant; however, the requirement is that inquiries be made. In order that inquiries be meaningful it is obvious that they must be made after the event. Instruction given to collectors prior to the signing of members may be helpful or necessary in the carrying out of an organizing campaign, however, such instructions do not obviate the necessity of making the inquiries required for the proper completion of Form 9 (now Form 8). (See Dominion Stores Limited case, [1964] OLRB Rep. Dec. 447).

In the instant case, Mr. Storey, prior to completing Form 9 (now Form 8) made inquiries of Mr. Cooke. However, Mr. Cooke had made no inquiries of Mr. Griffin and in turn Mr. Griffin had made no inquiries of other persons who had acted as col­lectors. It is readily apparent that the inquiries made by Mr. Storey were made of a person who had no direct knowledge of the collectors and the failure of Mr. Cooke and Mr. Griffin to make inquiries frustrated the purpose of Mr. Storey's inquiries. Where the officers of an applicant trade union have themselves frustrated the inquir­ies made by the person who completes Form 9 (now Form 8) and by their failure to follow through with their own inquiries, render the inquiries made by such persons meaningless, we must find that Form 9 (now Form 8) in such circumstances cannot serve the purpose for which it was intended and in such circumstances is a nullity. In arriving at this conclusion, the Board has noted with approval the Valley Transportation Company Limited case, [1963] OLRB Rep. Nov. 448, wherein the Board said at p. 452:

The Board must expect and insist that persons who file applications for membership cards and receipts and Form 9 (now Form 8) as evidence of membership, take all necessary precautions and care to ensure that the information contained therein is true and accurate. The Board is entitled to demand the highest standards of integrity, disclosure, and accuracy on the part of those who submit such evidence and where undisclosed inaccuracies of material facts are later brought to its attention, to take a strict view of them. [emphasis added]

7. The standard enunciated by the Board in National Steel Car, supra, has been consistently applied in other cases in which the same issue arose. It is a standard which is well known in the labour relations community, and the cases on point are legion (see for example: Puretex Limited, [1972] OLRB Rep. June 676 and cases cited therein; Stanley Steel Company Limited, [1972] OLRB Rep. Feb. 181; and N. D. Supermarket Limited, [1976] OLRB Rep. March 112; Triad Triumph Limited, [1976] OLRB Rep. March 115; Country Village, [1976] OLRB Rep. July 373; The Alexandra Hotel Limited, [1972] OLRB Rep. Nov. 963; and more recently Trent Valley Lodge Limited, [1980] OLRB Rep. June 926). The purpose of the Form 8 inquiry (and the 'second check') that it builds into the system) is equally clear. The Board must place total reliance on documentary evidence--written hearsay, often solicited by inexperienced laymen, yet not revealed to the employer or subject to cross-examination (see section 100 of the Act). On the basis of that evidence, a trade union may be certified as the employees' bargaining agent without recourse to a representation vote. Indeed, unless some specific irregularity is brought to the Board's attention, the Board will normally place total reliance on the Form 8 Declaration and will not undertake any formal inquiry concerning membership documents which appear to be regular on their face. In the present case, for example, the Form 8 problem would never have come to light had it not been for the disclosure of an irregularity which would not have been apparent on the face of either the Form 8 Declaration or the membership card itself. To avoid such problems, the Board has always held that the person signing the Form 8 must be meticu­bus and comply strictly with its requirements.

8. And in Grand & Toy Limited, [1986] OLRB Rep. Sept. 1223, the Board wrote as fol­lows:

"13... In certification proceedings the Board places heavy reliance upon the membership evi­dence filed by the union. Because of the consequences of the reliance that the Board places on what is a form of hearsay evidence which is not disclosed to the employer and is not subject to cross-examination, the Board requires a high standard of integrity in the nature and quality of the membership evidence filed. It is for an applicant trade union to satisfy the Board that every membership card upon which it relies was signed by the employee on whose behalf it is tendered and that each employee has paid the initiation fee that accompanies it. It is for this purpose that the Board requires (pursuant to Rule 6) a Form 9 declaration concerning membership docu­ments to be filed in every application for certification.

14. The Form 9 declaration is so important that if one is not filed, the Board will give no weight to the union's membership evidence (see for example Pietrangelo Masonry [1981] OLRB Rep. Feb. 218). If a Form 9 is filed but it is subsequently revealed either that no inquiry was in fact made by the declarant, or that the declarant failed to indicate in it discrepancies in the member­ship evidence of which he was aware, the Board may dismiss the application on the basis that no weight can be given to the declaration (see Bond Place Hotel [1983] OLRB Rep. Feb. 202). Where there are irregularities or discrepancies noted in the Form 9, the Board's practice is to concern itself with the acceptability of only the cards to which these apply. In addition, where a party has information that the union or anyone on its behalf has either attempted to perpetrate a fraud on the Board with respect to the membership evidence, or have otherwise acted improper­ly, that party can make those allegations and again the appropriate enquiry can be conducted."

15. Paragraph 3 of Form 9 is the critical paragraph and it is important to understand what it does not require as well as what it does require. It requires that the declarant, in this case the applicant's President, be able to make certain declarations, based either on the declarant's per­sonal knowledge or the inquiries that s/he has made. If the declarant signs the Form based on per­sonal knowledge, then that knowledge must be sufficient to allow the declarant to make the decla­ration in paragraph 3. It must also be sufficient to ensure that the declarant is aware of any exceptions to the standard declaration. Alternatively, if inquiries are made of collectors and these inquiries form the basis upon which the declarant is possessed of the necessary knowledge, then the inquiries must be made prior to signing the Form and they must be reasonable. The declarant need not inquire with respect to every conceivable event or possibility, but s/he must have made reasonable attempts and reasonable inquiries. What is reasonable will depend on the circumstances and context, but it is clear that an inquiry must be made, whether in a question and answer or a less structured format. Paragraph 3 demands that the declarant attest "that the persons whose names on the receipts or other acknowledgements of the payment on account of dues or initiation fees are the persons who actually collected the moneys paid on account of dues or initiation fees and that each member, on whose behalf a receipt or an acknowledgement of payment is submitted has personally paid in money the amount shown thereon on his own behalf to the person whose name appears on his receipt or acknowledgement of payment as collector, EXCEPT IN THE FOLL OW­ING INSTANCES:". As the declarant warrants that the persons named as collectors were those who actually collected the moneys, and that each member for whom there is a receipt had person­ally paid the money to the named collector, the declarant will not possess sufficient knowledge if s/he merely looks at documents, and (for example) compares each card with a receipt. The declar­ant must also know personally of the circumstances of the collection or make inquiries about them.

16. The membership cards submitted by the applicant in the instant proceeding do not on their face unambiguously state the date on which the dollars were paid. In this respect the cards disclose the date on which someone attests that the money was paid, but not necessarily the date on which the money was actually paid. Paragraph 3 of Form 9 does not require on its wording that the declarant indicate if the monies paid on behalf of members were paid other than on the date the applicant signed the membership. There is nothing in the wording of paragraph 3 which demanded that McLean disclose that dollars paid for the membership cards used in the first proceeding were applied in some instances for the membership cards in the instant proceeding. To the contrary, only four matters appear to be required in order for a declarant to properly sign the Form 9. First, the basis of the declarant's knowledge must be personal experience or reasonable inquiries that the declarant has made. Second, the declarant must be able to declare that the collector named on the membership card actually received the payment of money from the member who signed the card. Third, where exceptions exist to the declaration with respect to the second aspect, the declarant must note those exceptions in the particular instance. "EXCEPT IN THE FOLLOWING INSTANCES:" requires an itemized listing of exceptions. Fourth, and of critical importance given the purpose of Form 9 and the Board's reliance on the integrity of the declarant and therefore of the hearsay membership cards, the declaration must not contain any statements that the declarant knew or ought to have known were material misrepresentations.

17. With these general comments, we turn to the particular facts. The C.A.W. first argues that the timing of the filing of the amended Form 9, after the filing of its intervention attacking the membership evidence, and after the first hearing date in this proceeding, indicates that the true state of affairs would not have come to light but for its intervention. It argues that the applicant is doing no more than filing amended Form 9's as the case develops, to attempt to repair the deficien­cies in its case. To sanction such conduct defeats the purpose of the Form 9. The intervener points to the Board's decision in Collingwood Shipyards, Division of Canada Shipbuilding & Engineering Limited, [1967] OLRB Rep. June 246, wherein the Board wrote as follows:

"23. Finally, on the subject of disclosure, while no serious argument was advanced based on the fact that the applicant ultimately made full disclosure to the Board, we feel constrained to make if clear that such disclosure is not of the kind envisaged in the decisions of the Board. This is not a case where a responsible officer discovers an irregularity by rank-and-file employee and immediately brings it to the attention of the Board. What we are faced with here is a disclosure of facts, known to responsible persons in the union, only after another party to the proceedings has made allegations respecting the membership evidence. It is surely no answer to say that the alle­gations in the intervention did not reveal the precise state of affairs. In any event, particulars were demanded and given, and the particulars were reasonably close to the truth. Even in the face of these particulars, nothing was brought to the attention of the Board at the first hearing. Having regard to the evidence and all the circumstances of this case, we are driven to the con­clusion that the true state of affairs might well not have come to our attention save for the inter­vener's allegations. We reiterate we do not regard the disclosures ultimately made here as dis­closures within the meaning of the Board's decisions on this point..."

34. It may well be that the true state of affairs would not have been brought to the Board's attention but for the intervention of the C.A.W. And it is clearly true that, notwithstanding charges filed by the intervener about the method of collection of the memberships, no amended Form 9 was filed by the first hearing into this proceeding. When the Board commenced its inquiry, the applicant had not disclosed the exceptions required by Form 9, and had filed a Form 9 that we now know was incorrect and misrepresented events (in that, for example, those signing some of the cards as collector did not collect the dollar for that card). However, no party objected to the Board's receiving the amended Form 9 when it was filed, and the C.A.W. did not raise any con­cern at that stage about the timing of the filing of the amended Form 9. Based on that amended Form 9, the Board conducted the hearing and parties led evidence and made submissions. Having accepted the filing of the amended Form 9, and having relied upon that Form in the conduct of the hearing, we will not now dismiss the application on the grounds that the amended Form 9 was not flied in a timely fashion. We will, however, consider the timing of the filings in assessing the relia­bility of the Form 9's and the memberships.

35. The C.A.W. next argues that the amended Form 9 ought to have disclosed that dollars had only been paid by re-signing employees for the first cards (which were not before the Board), and that the dates shown on the membership cards for payment were inaccurate. It relies upon Collingwood Shipyards, (supra):

"It is clear, then, that a trade union, applying for certification, has the responsibility of satisfying itself that the matters dealt with in Form 8 have been properly investigated by the person com­pleting that form and, further, that any exceptions are duly noted on the form. It is also clear, however, that that responsibility extends beyond the matters enumerated in paragraph 3 of the form, that is, that the collector named on the receipt or other acknowledgement of payment actually collected the money and that the person to whom the receipt was issued, as having paid money towards dues or initiation fees, actually paid the money on his own behalf to the person shown as the collector. This is well illustrated in a recent decision of the Board, as yet unreport­ed, in the Frank Licari & Sons Cose, April, 1967, Board File No. 12815-66-R. In that case the membership evidence filed was found to have mislead the Board in a number of ways, one of which is set out in the decision in this fashion:

However, even the one application and receipt filed by the applicant was mislead­ing. One of the requirements of the Board is that the application card be signed and the money be paid within certain time limits in relation to the date of the application. It is therefore important that the date on the card and the receipt be accurate because this date is used by the Board in determining whether the requirements as to time have been met. The date on the card filed in this case was misleading because although it was the date the card was signed, it was not the date on which the money was paid. That had occurred some months previously.

After dealing with other ways in which the membership evidence was misleading, the Board goes on to say:

.As had been pointed out in many decisions; the Board is dependent to a large extent on the documentary evidence filed by the union because it would be an impos­sible task for it to verify the membership evidence for every individual by conducting a personal inquiry. It is incumbent, therefore, upon unions to be most circumspect with the documentary evidence they file and to make sure that it is accurate in all respects.

There is one final matter which must be considered. In dealing with the Licari & Sons Case, above, we pointed out that the duty to disclose extends beyond the matters set forth in the Form 8. Both that case and the Valley Transportation Company Limited Case make it clear that there is a duty on the applicant to make all necessary precautions and care to ensure that the informa­tion contained in the membership evidence, as well as the Form 8, is true and accurate. Clearly in this case the receipts filed are not true and accurate. Not only is this so with respect to the col­lectors but also with respect to the dates on the receipts. These were not the dates on which the money was paid, and we thus have a situation analogous to that in the Licari and Sons Case. While counsel for the applicant suggested in argument that the wording of the receipt does not in fact state that money was paid on the date set out in the receipt, having regard to the contents of both the front and the back of the card, we have no doubt that any reasonable person exam­ining the whole card would conclude that the money was paid on the date stated in the receipt. This would be particularly true where the dates on the card and receipt coincide and this was the case for most of the cards submitted in the place and stead of the cards signed prior to March

5."

36. The Licari and Sons case referred to in this quote states as follows, at [1967] OLRB Rep. April 57, paragraph 6:

"On applications for certification, the evidence of membership filed in support of the application may take one of two forms, either of which meets the Board's requirements. The first consists of applications for membership in the applicant union together with proof that the applicant has paid at least one dollar to the union. The sad part of this case is that the applicant could easily have met this requirement if it had used different documents to support its position. However, even the one application and receipt filed by the applicant was misleading. One of the require­ments of the Board is that the application card be signed and the money be paid within certain time limits in relation to the date of the application. It is therefore important that the date on the card and the receipt be accurate because this date is used by the Board in determining whether the requirements as to time have been met. The date on the card filed in this case was misleading because although it was the date the card was signed, it was not the date on which the money was paid. That had occurred some months previously."

37. These cases support the C.A.W. submissions that the Form 9 declarant must declare certain matters that are not explicitly required by the wording of paragraph 3, or elsewhere, in Form 9, and that one of the circumstances which must be so declared is when the date the employee signed the membership card is not the date when the dollar was paid. We concur that this information ought to be before the Board, if only because the Board might exercise its discre­tion to order a representation vote (pursuant to section 7(2)) if the membership evidence or pay­ment of money on behalf thereof occurs more than six months prior to the application. However, we need not decide whether the Form 9 must disclose this, given our decision rejecting the Form 9 on other grounds. But whether or not a declarant must disclose such information, when the mem­bership cards do not unambiguously state the date of payment, and these circumstances are not disclosed on the Form 9, the Board may well take this factor into account in deciding whether to conduct an inquiry, or exercise its discretion pursuant to section 7(2) of the Act to direct a repre­sentation vote, or in fashioning some other response.

38. A declarant would therefore be well advised to declare material facts not specifically required by the Form 9. S/he should also declare exceptions with specific reference to cards. In Schedule "A", paragraphs, of the amended Form 9, McLean declares that "in some instances, the specific collector who signed the combined membership card/receipt form was not the one who per­sonally received the $1.00 payment". Paragraph 3 of Form 9 requires that exceptions be noted "IN THE FOLLOWING INSTANCES:". While we are not prepared to reject this Form 9 because it did not itemize the particular cards whose collection involved special circumstances, we note that a non-specific disclosure will likely cause the Board to inquire into the circumstances of all the cards filed. Only through such a comprehensive inquiry would the Board have the knowledge of which cards were collected according to the disclosed exceptions. Without this evidence, the Board would not be able to decide which cards it could rely upon in support of the application.

39. As well as the specific disclosures not made, we are concerned with the knowledge McLean had when he signed the amended Form 9. McLean was not present and did not have per­sonal knowledge of the circumstances of the collection of all cards. With respect to the requisite inquiries, we cannot accept that the conversation in counsel's office with the collectors amounted to "reasonable inquiries". As noted, Hamilton, one of the collectors, testified that she never dis­cussed the Form 9 with McLean. The other collector, Rutherford, gave all her cards to Hamilton who in turn gave them to McLean, but she testified that McLean never asked her anything about her cards and neither did Hamilton. Rutherford further testified that McLean never examined the receipts himself. Both collectors deny, therefore, that McLean inquired of them. These circum­stances alone would cause us to reject the Form 9.

40. The Form 9 also materially misrepresents what occurred, and McLean knew or ought to have known this. Paragraph 2 of Schedule "A" states that "the two collectors were present together when all payments were received." The evidence of the collectors disclosed that both col­lectors were not always present when one or the other of them signed up new members and received dollar payments for those new cards (see paragraph 21 supra). Paragraph 4 of Schedule "A" declares that "the two collectors were present together when all combined membership cards/receipt forms were signed by them indicating receipt of the funds." But they were not always present together when new cards were signed, dollars received, and the receipt portion of the membership cards signed (which the evidence indicated was all done at the same time for new members), and paragraph 4 must therefore be false also. Given the circumstances under which the cards and dollars were collected, these two inaccuracies are both material. Any reasonable inquir­ies of the collectors would have or should have disclosed these facts.

41. In the result, we are satisfied that proper inquiries were not made, that the first Form 9 before us is incorrect, and that two of the statements on the amended Form 9 are false and the declarant ought to have known they were false. We therefore reject the Form 9's as improper and unreliable.

42. Having rejected the Form 9's on the basis noted above, there is no membership

evidence before the Board in this application to which the Board is prepared to give any weight and accordingly the application must be dismissed. As the Board noted above in the excerpts from Kitchener News Company Limited, and Grand and Toy Limited, a Form 9 Declaration is critical to the integrity and fairness of the certification process. Where the Board is asked to certify trade unions on the basis of hearsay membership evidence, without disclosing to the employer such evi­dence or allowing cross-examination on it, a high standard of integrity and reliability must be main­tained. Both the hearsay nature of the membership evidence and the employer's inability to exam­ine this evidence demand safeguards to insure its reliability. One safeguard is the Board's comparison of the signatures of applicants for membership with the specimen signatures provided by the employer for each such applicant. Another safeguard, both authorized and demanded by the regulations and the requirement that Form 9 be filed (see Rule 6 of the Rules of Procedure, Regulation 546 under the Act), is that someone other than the individual applicant attest in writing, by signing and filing a proper Form 9, that the applicant has in fact applied for membership and that the collectors have received the application funds on behalf of the trade union.

43. As the Board noted in Grand and Toy Limited, supra, and in numerous other cases, the Form 9 Declaration is considered so important by the Board that if one is not filed, the Board will give no weight to the union's membership evidence and the application will be dismissed. Consist­ent with this principle, if a Form 9 Declaration is filed but the Board determines that it is not a proper Form 9 Declaration, then the Board will also give no weight to the union's membership evi­dence and will reject the application. For membership evidence to be acceptable, it must not only contain the requisite elements and be filed by the terminal date, but must be supported by a proper Form 9. A Form 9 will be improper when the Board concludes that the declarant either did not possess the requisite personal knowledge to sign the form, or did not engage in the necessary rea­sonable inquiries as a prerequisite to signing the form. The Form 9 will also be improper if the declarant knew, or ought to have known, either that certain matters ought to be have been dis­closed, but were not, or that some of the disclosures constitute material misrepresentations. At the same time, there may be circumstances where the Form 9 is subsequently determined to be inaccu­rate, but nevertheless remains proper; for example, the Board is satisfied that the declarant made reasonable inquiries but those inquiries did not disclose exceptions or problems with the member­ship evidence and accordingly the declaration does not note such exceptions. In this latter circum­stance, the declaration itself would be proper (though inaccurate) in that the declarant made the necessary inquiries and disclosed what the declarant knew or ought to have known. Any misinfor­mation or lack of information provided by the person of whom inquiries were made in such a cir­cumstance would not reflect upon the sufficiency or propriety of the Form 9 itself, and accordingly viva voce evidence might well satisfy the Board that the membership evidence in question is relia­ble. Again, such viva voce evidence is only admissible in certain circumstances: see paragraph 28, supra. But where no Form 9 is filed, or having been filed is found not to be proper in the sense that inquiries were not made, or exceptions or matters that should have been noted are not noted or inaccurately noted, the membership evidence will not be properly attested to as required by the regulations, and the membership evidence will be given no weight.

44. Quite apart from the fact that Rule 6 requires such a Form 9 to be filed, fairness to the parties and the integrity of the process demands such a Board response when a proper Form 9 is not filed. It is not a question of punishing the transgressing party, but of ensuring that both the Board and the parties have confidence in the integrity and fairness of the system and the certifica­tion process. Any such confidence would be seriously undermined if the Board were to conclude that a Form 9 was improper in one of the respects noted above, but nevertheless were to rely upon the viva voce evidence to find that the membership evidence was adequate and reliable. Were the Board to do so, there would be little incentive for Form 9 declarants to file proper Form 9's or make the necessary inquiries, since at worst an intentionally misleading or negligently inaccurate Form 9 would lead to the Board conducting its own inquiry, and at best, the Board might never discover the problems with the membership evidence. The requirement under the Rules that a Form 9 be filed, and the Board's insistence that it be a proper Form 9, provides the necessary deterrent to such potential abuse.

45. For these reasons, the application is hereby dismissed, without prejudice to the right of the applicant to reapply for certification: see, for example, Leco Industries Limited [1979] OLRB Rep May 404. In light of our decision dismissing the application, it is unnecessary to deal with the issues of "trade union" status and management support.

DECISION OF BOARD MEMBER JAMES A. RONSON;

1. I cannot agree with the reasoning of my colleagues. It seems to me that the majority decision emphasizes form over substance with respect to this application for certification.

2. In a normal certification case, the Board accepts and relies on hearsay evidence of union membership. The form of this evidence is by way of written applications for membership in the union which are filed with the Board. Further, the Board requires that a responsible represent­ative of the applicant union enquire and verify that the membership application cards were col­lected according to established Board procedures, and to sign and file a declaration (Form 9), with the Board outlining the results of those enquiries.

3. Normally, at the certification hearing the Board will not allow a general enquiry by an employer or an objecting employee into the collection of membership evidence. The Board may conduct its own examination with respect to a specific membership application card but only when the card is subject to specific challenge by way of written allegations and particulars filed with the Board.

4. In this case, as a result of written allegations and particulars filed by the Intervener union (CAW - Canada), the Board heard days of evidence concerning the formation of the Appli­cant and the collection of its membership evidence. With respect to its status, I am satisfied that the Applicant is a trade union as defined by the Labour Relations Act.

5. We have received viva voce evidence, the "best evidence", concerning the collection of the membership application cards. It cannot be ignored in favour of dismissing the application because of a Form 9 that is defective. Because we have received the best evidence the Form 9 becomes irrelevant and we have to decide the case on the basis of the viva voce evidence before us.

6. Based on the viva voce evidence of the collectors of the membership cards, I am sat­isfied that the membership evidence was collected in a manner consistent with the requirements of the Board and the cards express the voluntary desire of those persons who signed them.

7. More than 55% of the employees have voluntarily signed applications for membership in the applicant. Subject to the usual second check of these cards by the Board, I would issue a cer­tificate to the applicant union.